Demande directe (CEACR) - adoptée 2019, publiée 109ème session CIT (2021)

Convention (n° 100) sur l'égalité de rémunération, 1951 - Portugal (Ratification: 1967)

Autre commentaire sur C100

Observation

Demande directe

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The Committee notes the observations of the Confederation of Portuguese Industry (CIP) and of the General Workers’ Union (UGT), both received on 28 August 2017, as well as of the General Confederation of Portuguese Workers - National Trade Unions (CGTP-IN), received on 1 September 2017, which have all been forwarded by the Government.

Articles 1 and 2 of the Convention. Legislative developments. Equal pay between men and women and wage transparency. The Committee notes with interest the adoption of Law No. 60/2018 of 21 August 2018, for the promotion of equal pay for men and women for equal work or work of equal value, which establishes a set of measures intended to contribute to a better implementation of the principle of the Convention. It notes that these new measures include: (i) a duty for companies to implement a transparent wage policy (section 4); (ii) the collection of national data on the gender pay gap, providing that, every year, the Ministry of Employment and Social Affairs will publish detailed statistical data on the salary gap between men and women, at general and sectoral levels, as well as statistical data by company, profession and qualification level, based on the annual balance sheet provided by the companies (section 3); (iii) the strengthening of the role of the Working Conditions Authority (ACT), which, following the publication of the above-mentioned statistical data, may notify companies to present in a period of 12 months an “evaluation plan on wage disparities within the company” and correct those amounting to discrimination (section 5); and (iv) also strengthening the role of the Commission for Equality in Labour and Employment (CITE), to which workers and union representatives may make requests to provide advice on alleged gender pay discriminatory practices inside a company and in respect of which it may issue binding opinions on situations of potential pay discrimination on the ground of sex, compelling the employer, who may be subjected to a fine, to eradicate such situation (section 6). The Law also provides the dismissal of, or the application of disciplinary measures against a worker within one year of their making such requests to the CITE is presumed unlawful (section 7). The Committee asks the Government to provide information on the practical implementation of Law No. 60/2018 of 21 August 2018, including by providing data on the level of compliance with the statutory implementation of transparent wage policy at the company level, information on sanctions imposed in cases of non-compliance, as well as on any actions taken to address gender wage gaps. It further asks the Government to provide information on the number of: (i) notifications made by the Working Conditions Authority requesting companies to elaborate an evaluation plan on wage disparities within the company and the appropriate corrective measures taken; and (ii) binding opinions compelling employers to eradicate gender pay discrimination practices formulated by the CITE. The Committee asks the Government to provide information on the measures taken to raise awareness of the provisions of Law No. 60/2018 among workers, employers and their representative organizations, as well as among law enforcement officials and competent authorities, any obstacles identified in its implementation, and, if any, the measures taken or envisaged to overcome them.

Work of equal value. Scope of comparison. The Committee recalls that section 23(d) of the Labour Code defines “work of equal value” as work for which duties performed at the service of the same employer are equivalent, with respect to the qualifications or experience required, the responsibilities assigned, the physical and mental effort and the conditions under which the work is performed. It notes that, in the framework of the supervision of the European Social Charter by the European Committee of Social Rights, the Government indicated that it did not seem possible to compare two or more enterprises for wage purposes as the differences in wages could be attributable to the differences in organisation of work, investment, or type of business, which are the key elements determining workers’ remuneration (2014 and 2016 Conclusions on Article 4(3) and 20 of the European Social Charter, documents 2014/def/PRT/4/3/EN and 2016/def/PRT/20/EN). The Committee notes that the UGT expresses further concern at the lack of legal clarity of the definition of the term “work of equal value”. The Committee recalls that the application of the principle of the Convention should not be limited to comparisons between men and women in the same establishment, enterprise or sector but allows for a much broader comparison to be made between jobs performed by men and women in different places or enterprises, or between different employers or sectors. Where women are heavily concentrated in certain sectors or occupations, there is a risk that the possibilities for comparison at the enterprise or establishment level may be insufficient (see General Survey on the fundamental Conventions, 2012, paragraphs 697–698). The Committee asks the Government to provide information on the measures taken or envisaged to ensure that, when assessing the equal value of jobs, comparisons can be made between jobs performed by men and women in different places or enterprises, or between different employers, in order to give full expression to the principle of the Convention. It asks the Government to provide information on the measures taken to raise awareness of labour inspectors, judges, prosecutors, and other relevant officials on the principle of the Convention, in particular concerning the scope of comparison, and to provide a copy of any relevant judicial or administrative decision.

Assessing and addressing the gender pay gap. The Committee previously requested the Government to adopt specific measures to reduce the gender pay gap and address its causes, and to ensure that workers are not discriminated against with respect to pay bonuses or in their performance assessment, due to their family responsibilities. The Committee notes that the CGTP-IN and the UGT both reiterate their concerns about the persistence of indirect wage discrimination against women, in particular as regards bonuses which are linked to personal appraisal and are generally higher for higher positions were women are less represented. Furthermore, the lack of period of absence is generally set as a criteria for determining the amount of the bonus, which indirectly discriminates against women who bear more family responsibilities, unpaid care work being estimated at 25 hours and 24 minutes per week for women compared to nine hours and 24 minutes for men. The trade unions add that such indirect wage discrimination against women is reflected by the persistent differences between the gender pay gaps concerning basic remuneration and overall remuneration, which, the Committee notes, stood at 15.8 per cent and 19.1 per cent respectively in 2017, according to a report published by CITE. The Committee notes that, according to Eurostat, the unadjusted gender pay gap decreased from 17.8 per cent in 2015 to 16.3 per cent in 2017. The Committee however notes from the 2017 CITE report, that the gender pay gap remains wider in higher positions despite the fact that women have reached higher levels of education and qualification than men, being estimated at 26.2 per cent for the average monthly basic remuneration and at 27.7 per cent for the average monthly overall remuneration. In that regard, it notes that women represented only 34.3 per cent of workers in high ranking and managerial positions (CITE report, 2017, pages 26, 29, and 33–35). The Committee notes that the CGTP-IN further highlights that more women than men are receiving the minimum wage (28.9 per cent and 18.5 per cent respectively in October 2016) and that, as a result of the gender pay gap, women have lower social benefits, including unemployment and illness benefits, as well as lower pensions. It further notes that the CIP considers that the gender pay gap is linked to cultural stereotypes which should be addressed by ensuring that women can access a greater diversity of career opportunities, including by enhancing girls’ and women’s access to vocational training and technical and scientific occupations, as well as by promoting women’s entrepreneurship. The Committee notes the Government’s indication, in its report, that several legislative and policy measures have been adopted by the Government to promote gender equality and equal pay between men and women. Referring to its above comments on Law No. 60/2018, the Committee takes note in particular of: (i) resolution No. 11-A/2015 of 6 March 2015, which introduces measures to promote gender equality in management and supervisory positions and establishes mechanisms to promote equal pay by identifying and analysing wage differentials between women and men in priority in sectors with higher gaps, with enterprises being requested to implement a strategy to eliminate identified wage differentials; (ii) Ministerial Ordinance 84/2015 of 20 March 2015 which introduces a new incentive for the promotion of gender equality in the labour market by providing financial support for employers who recruit job seekers whose genre is underrepresented in a specific occupation; as well as (iii) the National Strategy for Equality and Non-Discrimination for 2018–30 “Portugal + Igual” (ENIND) which aims, inter alia, at promoting equality between women and men. The Committee further notes that, since 2014, two assessment tools are available on the CITE’s website, namely a self-assessment survey on equal pay between men and women and a gender pay gap calculator (calculator DSG), which enable companies to analyse pay structure and understand whether the pay differences are gender based. It notes, from the 2019 Government’s report under the national level review of implementation of the Beijing Declaration, that in 2018, 860 users logged in 1,004 times to the gender pay gap calculator and 159 did the self-assessment survey. The Committee asks the Government to pursue its efforts to address the gender pay gap and to provide information on the concrete measures implemented, in the framework of the National Strategy for Equality and Non-Discrimination for 2018–30 “Portugal + Igual” (ENIND) or otherwise, to effectively address the gender pay gap and its underlying causes, such as vertical and horizontal occupational gender segregation and stereotypes regarding women’s professional aspirations, preferences and capabilities, and their role in the family. Referring to its 2019 direct request on the application of the Workers with Family Responsibilities Convention, 1981 (No. 156), it asks the Government to indicate the specific measures taken to ensure that workers are not discriminated against with respect to pay bonuses or in their performance assessment, due to their family responsibilities. The Committee further asks the Government to provide information on the number of enterprises in the public and private sectors that have identified or reported the existence of pay differentials and the corrective measures implemented to address them, as well as on any measures taken to ensure that wages set in sectors predominantly employing women are not based on a gender biased undervaluation of the work performed. It asks the Government to provide statistical information on the earnings of men and women, disaggregated by economic activity and occupation, both in the public and private sectors.

Article 2(2)(c). Collective agreements. The Committee recalls that sections 492(2)(d) and (e) of the Labour Code provides that measures intended to promote gender equality and non-discrimination, together with basic remuneration, are part of mandatory issues to be covered by collective agreements, and section 479 provides that CITE shall review all collective agreements after their publication in order to check whether discriminatory clauses are included, and if so, invite the employer to amend such clause. It further recalls that, pursuant to section 26 of the Labour Code, whenever a collective agreement or internal provision of company regulations restricts a certain type of remuneration to men or to women, these stipulations are automatically applicable to employees of both sexes, provided they perform equal work or work of the same value. Recalling the important role that can be played by collective agreements in the application of the principle of equal remuneration for men and women for work of equal value, the Committee asks the Government to provide information on the number of agreements on remuneration reached through collective bargaining, together with a summary of their provisions on wage determination and equal remuneration. The Committee further asks the Government to provide information on the application in practice of sections 26, 479 and 492(2)(d) and (e) of the Labour Code.

Article 3. Objective job evaluation. Referring to its previous comment where it requested the Government to provide information on the number of job evaluation exercises carried out in those public or private enterprises that had reported pay differentials between men and women in accordance with resolution No. 18/2014, the Committee notes the Government’s indication that such information is being assessed. It notes however that the CGTP-IN highlights the lack of implementation of resolution No. 18/2014 concerning the elaboration of report by companies on gender pay equity and proposed measures to overcome it. The Committee notes that Law No. 60/2018 imposes a duty for companies to have transparent pay policies based on the application of gender-neutral job evaluations and enables the ACT, through a specific mechanism, to notify companies to produce a plan assessing pay disparities and to correct those amounting to discrimination. The Committee asks the Government to provide information on the number of job evaluation exercises carried out in the public or private sectors, in particular in the framework of Law No. 60/2018, as well as in enterprises that have reported pay differentials between men and women in accordance with resolution No. 18/2014, indicating the criteria used and the measures taken to ensure that men and women receive equal remuneration for work of equal value. It asks the Government to provide information on any measures taken to promote, develop and implement practical approaches and methods for the objective evaluation of jobs, in both the public and private sectors, based on criteria that are free from gender bias, such as qualifications and skills, effort, responsibilities and conditions of work, with a view to ensure the effective implementation of the principle of the Convention.

Enforcement. In its previous comments, the Committee requested the Government to continue to provide information on relevant opinions of CITE and the activities carried out by both CITE and the Commission for Citizenship and Gender Equality (CIG) for the promotion of the principle of equal remuneration for work of equal value. It also requested the Government to provide information on the enforcement activities of the labour inspection services relating to the application of the Convention. The Committee notes the Government’s indication that awareness-raising activities on equal remuneration between men and women were continued by CITE, among which the National Equal Pay Day. It notes more particularly, from the Government’s report on the application of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), that CITE has been working in collaboration with employers from both the private and public sectors in order to implement, monitor and disseminate specific gender equality activities, in particular with regard to tackling the gender pay gap. The Government indicates that from January 2014 to May 2017, 422 complaints were received by CITE of which only three related to pay inequality. The Committee further notes, from the statistical information provided by the Government, that, from 2014 to 2016, labour inspections were carried out in 92,383 establishments and 85 cases of infractions concerning equality and non-discrimination were identified, of which only one related to inequality in conditions of employment. Observing that no specific information is provided on any case of pay inequality identified by labour inspectors, it notes that no judicial decision was handed down on this issue. The Committee notes that the CGTP-IN expresses concern at the lack of monitoring of working conditions and implementation of the legislation by the labour inspectorate, as well as at the lack of sanctions and redress of pay inequity situations. In light of the very low number of complaints and cases concerning inequality of remuneration officially registered, the Committee asks the Government to provide information on any proactive steps taken, including by CITE and CIG, to raise public awareness of the relevant legislative provisions, the procedures and remedies available. It asks the Government to provide information on the number of pay inequality cases detected by or brought before the Working Conditions Authority, CITE, the courts or any other competent authorities, the sanctions imposed and remedies granted.